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 IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF OHIO 

 EASTERN DIVISION 

JOSHUA COPENHAVER NELSON, 

 Plaintiff, 

 vs. Civil Action 2:12-cv-1167 

 Judge Graham 

 Magistrate Judge King 

WANZA JACKSON, et al., 

 Defendants. 

REPORT AND RECOMMENDATION

 Plaintiff, an inmate currently incarcerated at the Marion 

Correctional Institution, filed this civil rights action under 42 

U.S.C. § 1983 on December 19, 2012, asserting several federal claims. 

On August 19, 2014, the undersigned recommended that summary judgment 

be granted in favor of the defendants on all of plaintiff’s claims. 

See Report and Recommendation, ECF 97. The parties were specifically 

advised that failure to object to the Report and Recommendation within 

fourteen days “will result in a waiver of the right to de novo review 

by the District Judge and of the right to appeal the decision of the 

District Court adopting the Report and Recommendation.” Id. at 35. 

The record reflects that plaintiff received a copy of the Report and 

Recommendation on approximately August 25, 2014. ECF 98. No 

objections to the Report and Recommendation were filed within the 

applicable time period. On September 18, 2014 – i.e., almost two (2) 

weeks after objections were due - the assigned District Judge adopted 

the Report and Recommendation and directed the Clerk to enter judgment 

in favor of the defendants on all of plaintiff’s claims. Order, ECF 

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99. See also Judgment, ECF 100. 

 On October 3, 2014, plaintiff filed a notice of appeal, ECF 102, 

and, upon motion, ECF 103, was granted leave to proceed on appeal in 

forma pauperis. Order, ECF 104. On the same day, plaintiff also 

filed a Motion to Amend and Relief from Judgment, ECF 101 (“Motion”), 

pursuant to Rules 59(e) and 60(b) of the Federal Rules of Civil 

Procedure. Defendants have not responded to plaintiff’s Motion. 

In light of the pendency of plaintiff’s appeal, this Court no 

longer has jurisdiction over the issues presented by plaintiff’s 

motion. See Pickens v. Howes, 549 F.3d 377, 383 (6th Cir. 2008)(“Once 

divested of jurisdiction, the district court may ‘aid the appellate 

process’ but may not independently grant a Rule 60(b) motion”). Even 

if the matter were remanded to this Court for consideration of the 

Motion, see Bovee v. Coopers & Lybrand C.P.A., 272 F.3d 356 (6th Cir. 

2001), it is recommended that the Motion be denied. 

Rule 59(e) requires that “[a] motion to alter or amend a judgment 

. . . be filed no later than 28 days after the entry of the judgment.” 

Fed. R. Civ. P. 59(e). A court may grant a motion to amend or alter a 

judgment if there exists “(1) a clear error of law; (2) newly 

discovered evidence; (3) an intervening change in controlling law; or 

(4) a need to prevent manifest injustice.” Nolfi v. Ohio Ky. Oil 

Corp., 675 F.3d 538, 551-52 (6th Cir. 2012). “A plaintiff cannot use 

a Rule 59 motion . . . to raise arguments which could, and should, 

have been made before judgment issued.” Leisure Caviar, LLC v. United 

States Fish & Wildlife Serv., 616 F.3d 612, 616 (6th Cir. 2010) 

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(internal quotation marks omitted). Therefore, “[i]f the movant 

simply regurgitates arguments previously presented or presents 

arguments which originally could have been argued, then the movant’s 

proper recourse is an appeal to the circuit court.” United States ex 

rel. Am. Textile Mfrs. Inst. v. The Limited, Inc., 179 F.R.D. 541, 547 

n.9 (S.D. Ohio 1998). Granting or denying a motion under Rule 59(e) 

falls within the district court’s discretion. See, e.g., Betts v. 

Costco Wholesale Corp., 558 F.3d 461, 467 (6th Cir. 2009). However, 

“[a] motion to alter or reconsider a judgment is an extraordinary 

remedy and should be granted sparingly because of the interests in 

finality and conservation of scarce judicial resources.” Am. Textile 

Mfrs. Inst., 179 F.R.D. at 547. 

Rule 60 provides in pertinent part as follows: 

On motion and just terms, the court may relieve a party or 

its legal representative from a final judgment . . . for 

the following reasons: 

(1) mistake, inadvertence, surprise, or excusable neglect; 

(2) newly discovered evidence that, with reasonable 

diligence, could not have been discovered in time to move 

for a new trial under Rule 59(b); 

(3) fraud (whether previously called intrinsic or 

extrinsic), misrepresentation, or misconduct by an opposing 

party; 

(4) the judgment is void; 

(5) the judgment has been satisfied, released, or 

discharged; it is based on an earlier judgment that has 

been reversed or vacated; or applying it prospectively is 

no longer equitable; or 

(6) any other reason that justifies relief. 

Fed. R. Civ. P. 60(b). Plaintiff, as the movant, bears the burden of 

proving his entitlement to relief under Rule 60(b) by clear and 

convincing evidence. See, e.g., Info-Hold, Inc. v. Sound Merch., 

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Inc., 538 F.3d 448, 454 (6th Cir. 2008). “The general purpose of Rule 

60(b) . . . is to strike a proper balance between the conflicting 

principles that litigation must be brought to an end and that justice 

must be done.” Charter Twp. of Muskegon v. City of Muskegon, 303 F.3d 

755, 760 (6th Cir. 2002) (quotations and citations omitted). The 

trial court enjoys broad discretion in deciding whether to grant or 

deny a motion under Rule 60(b). Tyler v. Anderson, 749 F.3d 499, 509 

(6th Cir. 2014). 

 In the case presently before the Court, plaintiff avers that he 

was unable to file timely objections to the Report and Recommendation

because of health reasons and limited access to the law library. 

Affidavit in Support of Motion to Amend and Relief from Judgment, ¶¶ 

5-9 (“Affidavit”), attached to Motion. While this Court accepts as 

true plaintiff’s representations in this regard, he fails to identify 

any grounds for relief under either Rule 59(e) or 60(b). Instead, 

plaintiff generally “believes there exists a justiciable claim 

requiring his objections to be heard and presented to this court.” 

Motion, p. 1. Plaintiff also vaguely asserts that “[t]here are 

several areas for Objection to the Report and Recommendation.” 

Affidavit, ¶ 4. However, conclusory beliefs and vague assertions do 

not persuade this Court that plaintiff is entitled to the 

extraordinary remedy under Rule 59(e) or that he has established his 

right to relief under Rule 60(b) by clear and convincing evidence. 

See Info-Hold, Inc., 538 F.3d at 454; Am. Textile Mfrs. Inst., 179 

F.R.D. at 547. Accordingly, the Court’s discretion is best exercised 

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in denying the Motion under Rules 56(e) and 60(b). See, e.g., Wilson 

v. Booker, No. 09-1851, 2009 U.S. App. LEXIS 29460, at *3-4 (6th Cir. 

Nov. 17, 2009) (finding that habeas petitioner did not establish any 

of the enumerated grounds for relief under Rule 60(b) where he did 

“not identify any factual or legal basis justifying reconsideration of 

the district court’s order”); Reid v. City of Flint, No. 02-2101, 103 

Fed. Appx. 607, at *609 (6th Cir. June 25, 2004) (affirming denial of 

plaintiff’s Rule 60(b) motion where he offers only conclusory 

allegations); Bonner v. Rechtzigel, No. 10-15069, 2011 U.S. Dist. 

LEXIS 60027, at *4-5 (E.D. Mich. June 6, 2011) (denying Rule 59(e) 

motion where, inter alia, plaintiff offers only conclusory 

statements); Scott v. Fed. Bureau of Prisons, 2007 U.S. Dist. LEXIS 

32513, at *9 (E.D. Ky. May 1, 2007) (denying Rule 59(e) motion based 

on “sweeping, conclusory allegations”). 

 WHEREUPON, should the matter be remanded to this Court for 

consideration of plaintiff’s Motion to Amend and Relief from Judgment, 

ECF 101, it is RECOMMENDED that the Motion be DENIED. 

 If any party seeks review by the District Judge of this Report 

and Recommendation, that party may, within fourteen (14) days, file 

and serve on all parties objections to the Report and Recommendation,

specifically designating this Report and Recommendation, and the part 

thereof in question, as well as the basis for objection thereto. 28 

U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Response to objections 

must be filed within fourteen (14) days after being served with a copy 

thereof. Fed. R. Civ. P. 72(b). 

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 The parties are specifically advised that failure to object to 

the Report and Recommendation will result in a waiver of the right to 

de novo review by the District Judge and of the right to appeal the 

decision of the District Court adopting the Report and Recommendation. 

See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Fed’n of 

Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States 

v. Walters, 638 F.2d 947 (6th Cir. 1981). 

October 29, 2014 s/Norah McCann King 

 Norah McCann King 

 United States Magistrate Judge 

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